Citation Nr: 1456484
Decision Date: 12/24/14 Archive Date: 01/02/15
DOCKET NO. 12-20 555 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUES
1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss.
2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for tinnitus.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Steven D. Najarian, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the U.S. Marine Corps from May 1966 to March 1969. His awards include the Combat Air Crewman Insignia with three bronze stars.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.
The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of this Veteran's case should take into consideration the existence of this electronic record.
FINDINGS OF FACT
1. In an unappealed December 2008 rating decision, service connection for bilateral hearing loss was denied on the basis that a connection between the present disability and military service had not been proven.
2. In an appealed December 2008 rating decision, service connection for tinnitus was denied on the basis that a connection between the present disability and military service had not been proven.
3. Evidence received since the December 2008 rating decision is cumulative and redundant in relation to the evidence of record at the time of the denial sought to be reopened and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss.
4. Evidence received since the December 2008 rating decision is cumulative and redundant in relation to the evidence of record at the time of the denial sought to be reopened and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for tinnitus.
CONCLUSIONS OF LAW
1. The unappealed December 2008 rating decision that denied service connection for bilateral hearing loss is final. See 38 U.S.C.A. § 5103, 5103A, 7105(c) (West 2014); 38 C.F.R. § 3.104(a), 20.302(a), 20.1103 (2014).
2. The unappealed December 2008 rating decision that denied service connection for tinnitus is final. See 38 U.S.C.A. § 5103, 5103A, 7105(c) (West 2014); 38 C.F.R. § 3.104(a), 20.302(a), 20.1103 (2014).
3. The criteria for reopening the claim for entitlement to service connection for bilateral hearing loss have not been met. See 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014).
4. The criteria for reopening the claim for entitlement to service connection for tinnitus have not been met. See 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus. Implicit in his claim is the contention that new and material evidence sufficient to reopen the claims has been received. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered.
The Veterans Claims Assistance Act of 2000
Duty to Notify
VA must notify the claimant and his or her representative, if any, of information and medical or lay evidence that was not previously provided to the Secretary and is necessary to substantiate the claim. See 38 U.S.C.A. §§ 5102, 5103 (West 2014). As part of this notice, VA must specifically inform the claimant and his or her representative of any portion of the evidence that is to be provided by the claimant and any portion that VA will attempt to obtain on the claimant's behalf. With regard to new and material evidence, VA must also notify the claimant of the evidence and information that is needed to reopen the claim and must describe the evidence that would be necessary to substantiate the element(s) of service connection not found in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006).
The RO provided the Veteran with the required notice by letter of December 2010, prior to the March 2011 adjudication of the request to reopen. The letter adequately notified the Veteran of the basis for the previous denial of his hearing loss and tinnitus claims and cited the new and material evidence that would be needed to reopen the claims. The letter specifically referenced the need for new evidence relating his current disabilities to his military service.
Duty to assist
As part of its duty to assist claimants, VA will provide a medical examination or opinion if the information and evidence of record does not contain sufficient medical evidence for VA to make a decision on the claim but: (1) contains competent lay or medical evidence that the claimant has a current diagnosed disability, or persistent or recurring symptoms of disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established disease, injury, or event in service. See 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2014); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).
With regard to the Veteran's application to reopen his claims for service connection for bilateral hearing loss and tinnitus, VA does not have a duty to provide a medical examination or to obtain a medical opinion until the claim is reopened. See 38 C.F.R. § 3.159(c)(4)(C)(iii) (2014); see also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341 (2003). Nonetheless, in March 2011, VA provided the Veteran with a VA medical examination that included a comprehensive hearing test and audiological exam. The VA examination report is adequate as it shows that the examiner considered the Veteran's relevant medical/military/work history, made a physical examination with testing, and gave reasoned analysis to support any medical opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that VA must ensure that the examination provided is adequate). In addition, a VA compensation and pension exam report was prepared in April 2012 based on a review of the Veteran's claims folder and medical history.
All identified and available treatment records have been secured. Because no new and material evidence has been submitted in the present case, further medical examination and opinion are not required. VA has satisfied its duty to assist the Veteran, and no further action is needed with respect to the duty to assist. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014).
The Board will now decide whether to reopen the claims for entitlement to service connection for hearing loss and tinnitus on the basis of any new and material evidence received.
Legal Criteria
Generally, service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated by, active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014). To establish entitlement to service-connected compensation benefits, a Veteran generally must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for organic diseases of the nervous system, such as sensorineural hearing loss, may also be established on a presumptive basis if the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 U.S.C.A. § 1112(a) (West 2014); 38 C.F.R. §§ 3.307(a), 3.309(a) (2014).
In general, VA rating decisions become final when not timely appealed. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2014). Pursuant to 38 U.S.C.A. § 5108 (West 2014), a final decision disallowing a claim may be reopened when new and material evidence is presented or secured with respect to that claim. "New" evidence means existing evidence not previously submitted to the agency. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2014). The phrase "reasonable possibility of substantiating the claim" does not impose a new requirement beyond those of "new and material." See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In determining whether evidence is new and material, the Board is to presume the credibility of the evidence. See Justus v. Prinicipi, 3 Vet. App. 510, 513 (1992).
If new and material evidence is presented and a claim reopened, the Board will assemble the evidence and has the responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014).
Bilateral hearing loss
The Veteran contends that, on the basis of new and material evidence submitted, his claim for entitlement to service connection for bilateral hearing loss must be reopened.
The December 2008 rating decision of the RO denied the Veteran's claim of service connection for bilateral hearing loss because the evidence did not show a nexus between the Veteran's hearing loss and his military service. The Veteran was informed of that rating decision and his appellate rights by a December 2008 letter from the RO. Because the Veteran did not appeal the December 2008 rating decision within a year of its mailing nor submit new and material evidence within one year, that rating decision became final. See 38 U.S.C.A. §§ 7104, 7105 (West 2014).
The evidence of record at the time of the December 2008 rating decision included service treatment records, the military personnel file, a military discharge document, VA treatment records, private treatment records, and VA medical examination reports. The Veteran's audiological evaluation at the time of his May 1966 enlistment examination noted "defective hearing" of the right ear and the following:
HERTZ
500
1000
2000
3000
4000
RIGHT
40
45
30
X
25
LEFT
5
0
0
X
0
The Veteran's military personnel records and the Veteran's statements established that he was exposed to significant noise during service as a helicopter door gunner. The Veteran scored 15/15 on an in-service whisper test in October 1967, and again in March 1969 as part of his separation exam which did not include an audiometric evaluation.
The Veteran was diagnosed as having hearing loss in a January 2008 VA audiological consult report. Furthermore, an October 2008 VA medical examination diagnosed the Veteran as having mixed hearing loss consistent with his history of otosclerosis and stapedectomy surgery of the right ear in 1983. The examiner further stated that, while the Veteran's asymmetrical mixed hearing loss was consistent with his history of otosclerosis and surgery, it could not be determined, without resort to mere speculation, whether the Veteran's hearing loss was due to in-service acoustic trauma.
As noted above, the RO denied the claim on the basis that the evidence of record did not show that the Veteran's bilateral hearing loss began during service, had been treated continuously since service, or was caused by an injury, disease, or event in service.
Evidence received since the December 2008 rating decision consists of VA treatment records, a VA medical examination, a VA examination consult, private-treatment cardiology records, and statements of the Veteran.
The Veteran argues that his service records show his exposure to hazardous noise as a helicopter door gunner during the Vietnam War, and that service connection for hearing loss and tinnitus should be granted because proven by the evidence or because he is entitled to the benefit of the doubt. He further argues that the lack of an in-service diagnosis of hearing loss is not determinative and that service connection can be established by credible lay testimony and other evidence of record, citing Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). See April 2011 notice of disagreement; April 2014 statement of Veteran's representative; October 2014 brief of appellant.
A November 2010 VA treatment note indicates that the Veteran presented himself for an audiological reevaluation due to a possible decrease [sic] in hearing loss, constant bilateral tinnitus, and poorly functioning hearing aids. According to the clinician, the Veteran denied aural fullness, ear trauma, and surgeries. The Veteran was diagnosed as having "sensorineural hearing loss of combined types, subjective tinnitus, and mixed conductive and sensorineural hearing loss; unilateral."
A January 2011 VA treatment record indicates that the Veteran wears a hearing aid and was fitted with a new hearing aid.
In March 2011, the Veteran underwent a VA medical examination. The examiner noted the Veteran's report of military noise exposure from weapons training, helicopter engine and flight noise, and firearms used while performing his duties as a door gunner. Also noted was the Veteran's report of noise exposure at home from saws, drills, and lawnmowers. While, according to the report, the Veteran stated that he was told of his hearing impairment upon his discharge from service, the report also contains the notation, "He states that his hearing loss began in the early 1970's." The Veteran recalled being told that he had hearing loss after undergoing a physical examination for employment in 1972. The examiner also noted the Veteran's report of right-ear surgery for otosclerosis.
The examiner diagnosed the Veteran with bilateral hearing loss. The audiological test result for the right ear was summarized as "mixed" hearing loss at the degree of "mild 926-40 HL) to severe (70-89 HL)." For the left ear, the summarized result was "mixed" hearing loss at the degree of "profound (90+ HL) to profound (90+)" [sic]. The specific results were:
HERTZ
500
1000
2000
3000
4000
RIGHT
35
45
45
50
60
LEFT
85
90
90
85
90
Testing also showed normal bilateral middle-ear functioning. The examiner determined that a nexus opinion could not be given without resort to mere speculation, in light of a lack of frequency-specific information during service and upon discharge from service, as well as the absence of complaint of hearing loss in the Veteran's service records.
In April 2012, a VA compensation and pension exam report was prepared based on a review of the Veteran's claims folder, including the service treatment records. The examiner noted the Veteran's report of combat during service as a helicopter door gunner. He also indicated that the Veteran's 15/15 scores for whispered and spoken voice tests during service were considered adequate for military purposes. The examiner concluded that the etiology of the Veteran's current hearing impairment is otosclerosis. As a rationale, the examiner stated that "the current test results and all available hearing test results are typical presentations of an operated (right) otosclerotic ear and an untreated (left) otosclerotic ear." The examiner further noted that acoustic trauma neither causes nor aggravates otosclerosis. The examiner also stated that the issue of whether acoustic trauma during service contributed to the Veteran's left-ear hearing impairment was a matter of mere speculation, because 1) any evidence that noise contributed has been masked by the post-service progression of otosclerosis; 2) no pure tone testing was performed at the time of discharge, and 3) the hearing impairment was not otherwise medically documented.
According to the April 2012 examiner, it is less likely as not that the Veteran's pre-existing right-ear hearing impairment was aggravated, or aggravated beyond normal progression, by acoustic trauma during military service. For a rationale, the examiner stated that the Veteran's right-ear hearing loss is typical of post-surgery otosclerotic hearing impairment. Finally, the examiner concluded that the question of whether the underlying disease of otosclerosis progressed during service and, as a consequence of the disease progression, caused an increase in the pre-existing right ear hearing impairment was a matter of mere speculation. The examiner reasoned that the absence of post-service hearing tests prevented a determination of whether the pre-existing middle-ear disease of otosclerosis progressed during service. Under the existing record, he found no indication that military service aggravated the Veteran's pre-existing hearing impairment beyond a natural progression during military service.
The Veteran has offered additional written argument that he incurred bilateral hearing loss by the acoustic trauma of helicopter and machine gun noise during service. The Board finds that these assertions are redundant of his prior contentions that were considered in the December 2008 rating decision that denied service connection. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Exposure to noise during service was conceded by the RO. Moreover, in this case, the issue of whether the Veteran's hearing disability was caused by events during active duty falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In this case, it is not a medical issue upon which the Veteran, as a lay person, is competent to provide an opinion. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Thus the Veteran's assertions as to causation do not raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2014).
As for the VA treatment records and VA medical examination, they show that hearing loss is an ongoing medical condition and not that it manifested itself in service or to a compensable degree within one year of discharge from service, or that it is causally related to military service. The recent medical evidence, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim. The fact of current hearing loss is not in dispute. Inasmuch as the recently submitted medical evidence shows current hearing loss, it is cumulative and redundant and does not raise a reasonable possibility of substantiating the claim. See Woehlaert v. Nicholson, 21 Vet. App. 456, 461 (2007). The March 2011 examination report offered no nexus opinion. The April 2012 examination report offered a negative nexus opinion. Evidence that is unfavorable to an appellant's case and that supports the previous denial cannot trigger a reopening of the claim. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992).
Finally, the April 2012 private medical records relating to the Veteran's heart condition are not material to the issue of whether the Veteran's hearing loss was caused, or aggravated by, an in-service disease, injury, or event.
The evidence received is cumulative and redundant of the evidence previously of record and raises no reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. Thus the claim is not reopened.
Tinnitus
The Veteran contends that, on the basis of new and material evidence submitted, his claim for entitlement to service connection for tinnitus must be reopened. The December 2008 rating decision of the RO denied the Veteran's claim of service connection for tinnitus because the evidence did not show a nexus between the Veteran's hearing loss and his military service. The Veteran was informed of that rating decision and his appellate rights by a December 2008 letter from the RO. Because the Veteran did not appeal the December 2008 rating decision within a year of its mailing nor submit new and material evidence within one year, that rating decision became final. See 38 U.S.C.A. §§ 7104, 7105 (West 2014).
The evidence of record at the time of the December 2008 rating decision included service treatment records, the military personnel file, a military discharge document, VA treatment records, private treatment records, and VA medical examination reports.
As with the evidence relating to bilateral hearing loss, the new evidence received with reference to tinnitus does not relate to the unestablished fact necessary to substantiate the Veteran's claim: a causal relationship between the present disability of tinnitus and an injury incurred or aggravated during service. Rather, the newly received evidence tends to prove the established facts of the Veteran's exposure to noise during service and his current tinnitus disability.
The VA treatment note of November 2010 indicates that the Veteran presented himself for an audiological reevaluation due to a possible decrease [sic] in hearing loss, constant tinnitus, bilaterally and poorly functioning hearing aids. The Veteran reported constant, high-pitched, bilateral tinnitus that began in 1969. The Veteran was diagnosed as having "subjective tinnitus" by the clinician.
A January 2011 VA treatment record indicates that the Veteran wears a hearing aid and was fitted with a new hearing aid.
The March 2011 VA medical report states that the Veteran's tinnitus is as likely as not a symptom of his hearing loss. The examiner noted that, while the Veteran's service treatment records do not show complaint of, or treatment for, tinnitus, the Veteran reports that tinnitus had its onset during service. The Veteran told the examiner that he recalled walking around aircraft engine noise and that both his ears would start to ring with a high-pitched tone. The ringing would last at least an hour after he left the flight area but would return when he was again around the aircraft engines. The Veteran reported that his current tinnitus is constant, high-pitched, bilateral, and worse in the left ear than in the right. Also noted was the Veteran's report of noise exposure at home from saws, drills, and lawnmowers. The examiner determined that a nexus opinion could not be given without resort to mere speculation, in light of a lack of frequency-specific information during service and upon discharge from service, as well as the absence of a complaint of tinnitus in the Veteran's service records. Specifically the examiner stated, "Although research indicates tinnitus is most often related to the hearing loss and what caused the hearing loss, it is impossible to determine with certainty the etiology of said tinnitus when the etiology for the hearing loss is unclear as well."
In April 2012 the VA medical examiner concluded that the Veteran's tinnitus was more likely than not a symptom of otosclerosis and the hearing impairment caused by the otosclerosis. The examiner's rationale was that tinnitus is a known, common symptom of otosclerosis and the hearing impairment caused by otosclerosis. The severity of the hearing loss and the underlying disease process were also cited. The examiner found no basis for concluding that tinnitus had its onset during service. In the examiner's opinion, medical knowledge more strongly supports a conclusion that tinnitus would have been present before military service as a symptom of the hearing loss documented at the Veteran's induction into service.
The April 2012 private medical records relating to the Veteran's heart condition are not material to the issue of whether the Veteran's tinnitus was caused, or aggravated by, an in-service disease, injury, or event.
The Veteran argues that his service records show his exposure to hazardous noise as a helicopter door gunner and that this acoustic trauma during military service caused his tinnitus. See April 2011 notice of disagreement; April 2014 statement of Veteran's representative; October 2014 brief of appellant. Service connection for tinnitus should be granted, he contends, because proven by the evidence or because he is entitled of the benefit of the doubt. He further argues, citing Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992), that the lack of an in-service diagnosis of tinnitus is not determinative and that service connection can be established by credible lay testimony and other evidence of record.
The Veteran's additional written contentions are redundant of his contentions that were considered in the December 2008 rating decision that denied service connection. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Exposure to engine and weapons noise was conceded by the RO. The VA treatment records and VA medical examination show that tinnitus is an ongoing medical condition and not that the Veteran's current tinnitus manifested itself in service or to a compensable degree within one year of discharge from service, or that the Veteran's tinnitus is causally related to service. This recently submitted evidence, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim. The fact of current tinnitus is not in dispute. Inasmuch as the new medical evidence shows current tinnitus, it is cumulative and redundant and does not raise a reasonable possibility of substantiating the claim. See Woehlaert v. Nicholson, 21 Vet. App. 456, 461 (2007). The March 2011 medical report offered no nexus opinion. The April 2012 medical examiner offered a negative nexus opinion. Evidence that is unfavorable to an appellant's case and that supports the previous denial cannot trigger a reopening of the claim. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992).
Even when considered with the previous evidence of record, the newly submitted evidence does not raise a reasonable possibility of substantiating the Veteran's tinnitus claim. Because new and material evidence has not been received, the Veteran's request to reopen the tinnitus claim is denied.
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ORDER
New and material evidence not having been received, reopening of the claim of entitlement to service connection for bilateral hearing loss disability is denied.
New and material evidence not having been received, reopening of the claim of entitlement to service connection for tinnitus is denied.
____________________________________________
Bethany L. Buck
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs